Monday, November 1, 2010

Vermont Supreme Court agains rules in Janet Jenkins' favor

In an opinion dated last Friday, the Vermont Supreme Court has upheld the order of a family court judge transferring custody of Isabella Miller-Jenkins to her nonbiological mother, Janet Jenkins. Isabella (identified as IMJ in the court rulings) has been underground with her biological mother, Lisa Miller, since the court ordered the custody transfer. This latest opinion does nothing in any practical sense to reunite Janet and Isabella.

The opinion is a careful, reasoned application of Vermont legal doctrine to the facts of the case as found by the trial judge. Factual findings supported by evidence are generally not disturbed by an appeals court, and the Vermont Supreme Court saw no reason to disturb the trial court's factual findings. It also found support for the court's determination that the transfer of custody was in Isabella's best interests. Keeping its eye on that goal at all times, the opinion notes as follows:

We are aware of the national attention that this case has gained, and the potential for parties to these proceedings to be influenced by matters not before this Court in a way that is not conducive to the best interests of this child. While Lisa might believe that all of her actions have been done out of concern for IMJ's best interests, we conclude that a mother disappearing with a child, apparently to defeat a lawful court order, is destructive to the best interests of that child. The evidence before the family court supports the conclusion that Janet has been acting with IMJ's best interests in mind throughout these proceedings and that a transfer of custody will, in the long run, benefit IMJ and provide her with a loving and stable home with access to both of her parents. By contrast, the evidence reveals that Lisa has demonstrated contempt both for the courts of this jurisdiction and for the reasoned laws passed by our Legislature.Lisa tried to argue, again, that the order transfering custody was a violation of her constitutional right to raise her child. The court noted that its first ruling in 2006 held that Janet was a legal parent and that therefore there is no distinction between the constitutional right of Lisa and that of Janet. Lisa appealed both that ruling and a subsequent one to the US Supreme Court, which refused to hear either case. I think it's a safe bet Lisa's attorneys will once again ask the Supreme Court to review this opinion, and I'd stake my professional reputation on my prediction that once again the Court will decline.

The court did order that a hearing be held at the time of the transfer of custody to Janet. It noted that Isabella's best interests could be served "only by way of a specific plan to ensure a successful and safe transition." The one case it cited in this section (not a Vermont case) was one in which a permanent transfer of custody from a grandmother who had raised a child for most of his life to the child's mother was delayed to prevent the "trauma...of an abrupt removal."

At this point the reality of Isabella's life is that she lives underground. Jennifer Levi, the GLAD attorney who has represented Janet in the Vermont proceedings, notes in her comment on the case that the conflict will not end for Isabella until she surfaces. "My heart goes out to Isabella," said Levi.

Mine too. Living underground is a dreadful circumstance for a child. One can imagine Janet facing the following Solomon-like decision: if she gives up on ever having a relationship with her daughter, that would allow Lisa and Isabella to resurface so that Isabella could have a life outside of hiding. I do not know Janet, but I feel certain this thought has crossed her mind. I assume she has concluded that Lisa's actions, which include lying to the court and inculcating Isabella in the extreme anti-gay views of the evangelical faith Lisa adopted after she and Janet split up, bode ill for her ability to serve Isabella's best interests even aboveground.

The personal choice was Janet's to make, based on what she has thought is best for her daughter. I have the luxury of some distance and approach it differently. Lisa is represented by Liberty Counsel. As I have noted frequently in my posts, Liberty Counsel is one of the legal organizations whose mission, in the name of Christian doctrine, includes representing biological parents against nonbiological parents in custody disputes when a same-sex couple has split up. In this case alone, Liberty Counsel has litigated multiple times through the appeals courts of both Virginia and Vermont and has never won even once. I think it is safe to say they will never win in this case in any court. They can only "win" if they can wear down Janet's resolve to raise her daughter, in which case they can promote their advocacy to other biological parents who might be considering using their services.

I would like to think that few parents are bad enough parents to make the choice Lisa has made, to sacrifice her daughter's childhood rather than allow a continuing relationship between Janet and Isabella. (Remember that originally Janet received only visitation rights; the custody transfer came only after Lisa violated the court order and refused to allow any visitation). If Liberty Counsel succeeds in wearing down Janet, however, their tactics will look more appealing to any parent considering defying court-ordered visitation. That's not just bad law and bad policy; it's bad for those children who will lose one of their parents.

I fume (in these posts) every time a state appeals court rules that a child with two same-sex parents actually has only one legal parent, based on what I deplore as faulty legal reasoning. If the actions of Liberty Counsel in this case serve the same purpose, then it will be as if Vermont law did not recognize Isabella's two parents. For court rulings recognizing two parents, like those we have seen in California, Oregon, and Colorado, to actually have any meaning, they must be respected on the ground. I would not condone a losing nonbiological parent kidnapping her child, and to my knowledge none has done so. Surely those moms have been as upset about being eliminated from their children's lives as Lisa was upset by having to honor the family she established for Isabella.

I do not know what Liberty Counsel told Lisa to expect from the court system, but I do not want their lawyers ever to be able to tell another parent that ignoring court orders will ultimately get them the result they seek -- the elimination of the child's other parent.

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.